CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 mai 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB853CD31 { font-family:Arial; font-size:5pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 17 May 2019   FIRST SECTION Applications nos. 71367/12 and 72961/12 Armine OGANEZOVA against Armenia lodged on 8 November 2012 and 15 January 2013 respectively STATEMENT OF FACTS The applicant in both cases, Ms Armine Oganezova, is an Armenian national who was born in 1980 and lives in Nacka, Sweden. She is represented before the Court by Mr M. Hovsepyan, director of PINK Armenia (Public Information and Need of Knowledge) NGO. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case The applicant, also known by the name ‘Tsomak’, is a well-known member of the lesbian, gay, bisexual and transgender (LGBT) community in Armenia. She has been involved in promoting the rights of LGBT persons in Armenia and internationally. The applicant co-owned and managed a bar called the D.I.Y. Club (‘the club’) in the centre of Yerevan, a place where members of the LGBT community would meet to socialise. In June 2011 the applicant participated in a gay pride march in Istanbul. While in Istanbul, she gave an interview to a local newspaper criticising Armenia’s human rights record. In August 2011 the applicant was contacted by Yerkir Media television channel and asked to give an interview to discuss her visit to Istanbul. On 25 July 2011 the interview was broadcast, following which she became the subject of an online hate campaign, intimidation and threats on the basis of her sexual orientation. Shortly thereafter several persons entered the club to harass and intimidate the people gathered there. Fearing that the club would become a target for homophobic attacks, the applicant and the two other co-owners of the club, A.P. and N.D., arranged a meeting with A.K., H.K., who were brothers, and two others who had been identified as the perpetrators of the incident. According to the applicant, it was agreed during the meeting that there would not be any further attacks. 2.     The arson attack on the club and the ensuing investigation At around 5 a.m. on 8 May 2012 an arson attack was made on the club. The applicant was informed of the attack by a friend who happened to be passing by and witnessed that the club was on fire and that there were fire brigades operating at the scene. Upon arrival the applicant discovered that the interior of the club had been severely damaged. According to the applicant, A.P. had seen a group of men around the premises the previous evening. This group of men, which included brothers A.K. and H.K., harassed and intimidated the club staff members. They were all wearing similar jackets with the logo “Black Ravens Armenia” which is associated with a well-known fascist group in Armenia. Shortly after her arrival the applicant called the police. A number of forensic experts arrived and informed the applicant that no fingerprints had been found. At 5 p.m. two police officers arrived at the club. According to the applicant, they entered the premises, gave a contact telephone number and left instantly without asking any questions. After the policemen left, the employees of a nearby business came to speak with the applicant and suggested watching the footage from their security camera, which showed a person breaking through the door of the club and throwing an explosive substance inside. A.P. then recognised A.K. on the footage. Thereafter the applicant called the police once again to describe what she had seen on the security camera footage. The police later arrived and took the security camera footage. It appears that the police instituted criminal proceedings on account of intentional property damage under Article 185 of the Criminal Code. On 9 May 2012 A.K. and H.K. were arrested. Statements were taken from them whereby they confessed to having set the club on fire, after they had made sure that there was no one left inside. In their statement the brothers mentioned that the reason for the arson attack was the fact that the club was a gathering place for LGBT persons. Later on the same day the applicant and N.D. went to the police station to file a report and were informed that both men had confessed to the arson attack on the club. During his interview on 10 May 2012 A.K. re-affirmed that he and his brother had carried out the arson attack on the club because it was a gathering place for homosexuals and, besides, the applicant had participated in a gay pride march in Turkey. On the same date H.K. was also questioned and made similar statements. On 11 May 2012 charges were brought against A.K. and H.K. under Article 185 § 3 of the Criminal Code (intentional property damage resulting in substantial loss). It appears that the investigating authority sought a court order to put A.K. and H.K. in pre-trial detention. It further appears that A.K. and H.K. were released on bail based on sureties provided by Hr.K. and A.M., parliamentarians from the Armenian Revolutionary Federation Party. On 12 May 2012 A.H. was questioned again and submitted that he had made his previous statements under duress. He had been ill-treated at the police station and forced to make self-incriminatory statements on his and his brother’s behalf. He refused to provide any details concerning the alleged perpetrators or to describe the circumstances of the alleged incident. It appears that A.H. and H.K. refused to make any further statements and denied the charges throughout the investigation. On 31 May 2013 the bill of indictment was finalised and the case was sent to the Kentron and Nork-Marash District Court (‘the District Court’) for examination. The relevant parts of the indictment read as follows: “... [A.H.] and [H.K.] are members of a “Fascist” group operating in [the Republic of Armenia] and are guided by the ideology of the said group that is, among other convictions, against homosexuality, therefore for the sake of the “high” values of that ideology they had visited [the club] numerous times ... had spit on [the club], vomited in front of the door thereby bothering the [club’s] management and expressing their discontent towards homosexuals... ... on 7 May 2012 [A.H.], [H.K.] and an unidentified person, having come to a prior agreement to set [the club] on fire ... at around 4 a.m. on 8 May 2012 they had arrived at [the club] and ... intentionally set [the club] on fire with fuel that they had brought along ... they had then escaped, having caused property damage in the amount of 3,227,563 Armenian drams ...” In the proceedings before the District Court A.H. and K.H. admitted the charges and requested application of the expedited procedure. It appears that at some point during the proceedings before the District Court the mother of [A.H.] and [H.K.] transferred to the court’s deposit account an amount exceeding the estimated property damage to the club. By judgment of 25 July 2013 the District Court found [A.H.] and [H.K.] guilty as charged and sentenced them to two years’ imprisonment. At the same time, the District Court decided to impose a suspended sentence with two years’ probation. The judgment stated that the estimated property damage was to be compensated from the amount deposited with the District Court’s account. The applicant lodged an appeal against the District Court’s judgment of 25 July 2013 arguing against the imposition of a conditional sentence. She claimed, inter alia , that the sentence imposed on [A.H.] and [H.K.] was too lenient in comparison to the gravity of the hate crime that they had committed. On 23 October 2013 the Criminal Court of Appeal rejected the applicant’s appeal. In doing so, it upheld the District Court’s judgment as regards [A.H.’s] and [H.K.’s] conviction and punishment and decided to exempt them from serving their punishment by virtue of the Amnesty Act adopted by the National Assembly on 3 October 2013. The applicant lodged an appeal on points of law. On 25 December 2013 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. 3.     Events following the arson attack On 10 May 2012 the applicant was informed that several young people had gathered in front of the club, acting aggressively and writing homophobic graffiti on the walls, much of which was directed specifically at the applicant, making it clear that she would not be allowed to re-open the club and that a further attack would be organised. According to the applicant, she called the police, who arrived with considerable delay and did not undertake any measures to investigate the threats made to her. During the following days, groups of people gathered outside the club seeking to intimidate and harass the applicant and the supporters of the club. They also destroyed much of what was left in the club, spilling paint over the fixtures. They had also left homophobic comments with threats on the walls such as “Go to hell Tsomak”, “We will kill you Tsomak” and so on. On 11 May 2012 two human rights activists gave an interview to an online publication where they discussed the arson attack on the club and in general the attitudes of society towards the LGBT community. Following the interview, an online group called “No to homosexuality” was created and pictures of the applicant and several LGBT rights activists were posted online. A stream of insulting and threatening messages was posted against those individuals and members of the LGBT community generally. On the same date the applicant gave a television interview where she discussed the arson attack and the homophobic attitude towards the LGBT community. This interview was followed by a significant number of threats and homophobic comments addressed to the applicant. In an interview given on 15 May 2012 A.M., when asked about the reasons for providing surety for the two men accused of the arson attack on the club, he stated, in particular, the following: “... in this case, I am sure that these young people behaved in the context of our societal and national ideology, in a right way. ... I consider that her type, I do not want to say a rude word, are destroying Armenian society...” On 17 May 2012 two unidentified men entered the club and began shouting abuse and threatening the applicant. They smashed some of the furnishings and spat at her. The applicant was terrified and thought that she was going to be physically harmed. On the same date the applicant and her friend filed a report with the Chief of Police asking for the identification and prosecution of the persons who had attacked them and for their own security to be ensured. They submitted, in particular, that the attackers had insulted them and threatened to return, adding that they would blow up the club anyway and that people like them should be annihilated. By another request to the Chief of Police dated 18 May 2012 the applicant sought protection from regular attacks and harassment for her and the staff members. She also sought to prevent further damage to the property of the club. On the same date E.S., the Deputy Speaker of the National Assembly made the following statement: “As an Armenian citizen and member of a national-conservative party, I find the rebellion of two young Armenian people against the homosexuals who have created a den of perversion in our country and have a goal of alienating society from its moral values completely right and justified ...” On 21 May 2012 a “Diversity” march took place in Yerevan which was attacked by a group protesting against it. According to the applicant, she was informed that a group of protesters had threatened to damage the club. Later that evening the applicant received a call from the owners of a business next to the club, to the effect that around fifty men had entered the club and that they could hear considerable noise from the premises, mainly of objects being smashed. When the applicant arrived, there was no one left and there was a large poster hanging outside the building with an abusive message. The fixtures and furniture had been broken and the walls vandalised with threatening messages and swastikas. The applicant reported the attack to the police, who arrived some time later. The police officers took a look around the club and left. According to the applicant, many of her friends were subjected to homophobic abuse and threats online during the days following the “Diversity” march, to the extent that they were afraid to walk around the city and feared for their safety. The applicant’s sister also received correspondence with threats. A week after the arson attack the applicant’s sister was asked to resign from her job as a waitress in a restaurant since the management did not want anyone to know that she worked there, because of the potential danger of any potential attacks on the restaurant. It appears that by decision of 25 May 2012 the police undertook measures of protection in respect of the applicant and her closest relations. On 23 June 2012 the applicant and her sister left Armenia for Sweden. She applied for asylum on the basis of persecution due to her sexual orientation. By the applicant’s account, her decision to leave Armenia was motivated by the constant threats that she was receiving online and from the stress and fear brought about by the people who gathered around the club for weeks after the arson attack. She was no longer able to earn a living after what had happened to the club. She was supported by her sister until the latter lost her job. The applicant currently lives and works in Sweden. B.     Relevant domestic law 1.     The Constitution of 1995 (with the amendments of 27 November 2005) Article 14.1 “Everyone shall be equal before the law. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or other personal or social circumstances shall be prohibited.” 2.     The Criminal Code Article 185: Intentional property destruction or damage “1.     Intentional destruction or damaging of a person’s property which has caused significant harm, shall be punishable by a fine from fifty to one hundred times the minimum salary or ... or imprisonment for up to two years. 2.     The same offence which: 1)     has been committed by arson, explosion or other publicly dangerous method; ... 3.     Offences envisaged in the first and second parts of this Article which: 1)     have caused particularly grave harm; ... Shall be punishable by imprisonment from two to six years.” C.     Relevant international material 1.     Council of Europe (a)     Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe to member States on measures to combat discrimination on grounds of sexual orientation or gender identity The relevant excerpts from Recommendation CM/Rec (2010)5 adopted by the Committee of Ministers on 31 March 2010 read as follows: “The Committee of Ministers ... Recommends that member states: ... 2.   ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them; 3.   ensure that victims of discrimination are aware of and have access to effective legal remedies before a national authority, and that measures to combat discrimination include, where appropriate, sanctions for infringements and the provision of adequate reparation for victims of discrimination; ... I.     Right to life, security and protection from violence A.   “Hate crimes” and other hate-motivated incidents 1.   Member states should ensure effective, prompt and impartial investigations into alleged cases of crimes and other incidents, where the sexual orientation or gender identity of the victim is reasonably suspected to have constituted a motive for the perpetrator; they should further ensure that particular attention is paid to the investigation of such crimes and incidents when allegedly committed by law enforcement officials or by other persons acting in an official capacity, and that those responsible for such acts are effectively brought to justice and, where appropriate, punished in order to avoid impunity. 2.   Member states should ensure that when determining sanctions, a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. 3.   Member states should take appropriate measures to ensure that victims and witnesses of sexual orientation or gender identity related “hate crimes” and other hate-motivated incidents are encouraged to report these crimes and incidents; for this purpose, member states should take all necessary steps to ensure that law enforcement structures, including the judiciary, have the necessary knowledge and skills to identify such crimes and incidents and provide adequate assistance and support to victims and witnesses. 4.   Member states should take appropriate measures to ensure the safety and dignity of all persons in prison or in other ways deprived of their liberty, including lesbian, gay, bisexual and transgender persons, and in particular take protective measures against physical assault, rape and other forms of sexual abuse, whether committed by other inmates or staff; measures should be taken so as to adequately protect and respect the gender identity of transgender persons. 5.   Member states should ensure that relevant data are gathered and analysed on the prevalence and nature of discrimination and intolerance on grounds of sexual orientation or gender identity, and in particular on “hate crimes” and hate-motivated incidents related to sexual orientation or gender identity. B.     “Hate speech” 6.   Member states should take appropriate measures to combat all forms of expression, including in the media and on the Internet, which may be reasonably understood as likely to produce the effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. Such “hate speech” should be prohibited and publicly disavowed whenever it occurs. All measures should respect the fundamental right to freedom of expression in accordance with Article 10 of the Convention and the case law of the Court. 7.   Member states should raise awareness among public authorities and public institutions at all levels of their responsibility to refrain from statements, in particular to the media, which may reasonably be understood as legitimising such hatred or discrimination. 8.   Public officials and other state representatives should be encouraged to promote tolerance and respect for the human rights of lesbian, gay, bisexual and transgender persons whenever they engage in a dialogue with key representatives of the civil society, including media and sports organisations, political organisations and religious communities.” (b)     Statement by the European Commission against Racism and Intolerance about recent events in Armenia, involving leading political figures openly condoning homophobic violence “Strasbourg, 7.6.2012 - The European Commission against Racism and Intolerance (ECRI) of the Council of Europe wishes to express concern about recent events in Armenia, involving leading political figures openly condoning homophobic violence. Setting a club on fire was characterised by a high-ranking State official as a rebellion against homosexuals, which was completely right and justified. And one of the persons arrested by the police in connection with the attack was bailed out by two members of parliament, who appeared to provide support for the alleged perpetrators in, inter alia , declarations made to the press. ECRI draws attention to the destructive consequences that such statements - and the various manifestations of hatred they have encouraged - are likely to have for the peaceful and tolerant society it has always tried to foster in Armenia and all other Council of Europe member States. In ECRI’s view, events of this nature create a dangerous sense of impunity which undermines, in a fundamental manner, overall respect for human rights. ECRI, therefore, calls on the Armenian authorities to investigate fully the underlying criminal acts with a view to establishing, inter alia, the motives of the alleged perpetrators. It also calls urgently on all Armenian political parties to distance themselves from such extreme forms of expression, which are clearly incompatible with the values that ECRI has always promoted.” 2.     Amnesty International In its statement of 18 May 2012 Amnesty International made the following comments: “... On 8 May, self-described “fascists” were caught on tape by a security camera as they threw Molotov cocktails through the windows of a gay-friendly bar in downtown Yerevan. Police reportedly arrived at the scene 12 hours later to investigate the arson attack. Two young men were arrested as part of the investigation, but were bailed shortly afterwards by two opposition parliamentarians from the nationalist Armenian Revolutionary Federation - Dashnaktsutyun party (ARF), who condoned the attack, saying it was in line with “the context of societal and national ideology”. ARF leaders have distanced themselves from the bailout, saying that the parliamentarians acted in their personal capacity, but they have fallen short of publicly calling on their colleagues to apologize for supporting the alleged hate crime. [E.S.], spokesperson for Armenia’s ruling Republican Party and Parliament Vice Speaker told Hayots Ashkharh newspaper Thursday that, “As an Armenian citizen and member of [the ruling] national-conservative party, I find the rebellion of the two young Armenian people against the homosexuals ... completely right and justified ...Those human rights defenders, who are trying to earn cheap dividends from this incident, I urge them first and foremost to protect the national and universal values.” Amnesty International believes this type of official discourse is dangerous, fuels discrimination and undermines the role of human rights defenders ...” 3.     The International Lesbian and Gay Association (ILGA) on the LGBT community’s problems in Armenia In its report on the situation of the LGBT community in Armenia published in 2009, the International Lesbian and Gay Association (ILGA) made the following comments: “In principle, LGBT people have the same right to legal protection under the Constitution as all Armenian citizens. However, in practice LGBT people do not for the most part make use of this protection, as there is no guarantee that their rights will be upheld either in courts or in police stations. Numerous human rights reports and testimonies given to ILGA-Europe bear witness to the deeply negative, discriminatory attitudes towards homosexuals in law-enforcement bodies. They show that some LGBT people (mostly gay men and MtF transgender persons) who have been brought to police departments have been subject to torture, arbitrary detention and blackmail. ... The survey carried out by We For Civil Equality breaks down the types of harassment, violence and human rights abuses directed specifically at lesbian or bisexual women ...: 61% of those surveyed had experienced verbal harassment because of their sexual orientation, 31% were threatened with violence and 1.5% had been assaulted or wounded with a weapon, 37% had personal property damaged or destroyed and 13% had objects thrown at them for this reason. Further, 70% of these women were spat at, while 24% were punched, hit, kicked or beaten because of their sexual orientation, and 12% testified to being excluded or deliberately ignored. As regards sexual assault, 12% recorded that this had happened to them, 20% said they had been sexually harassed and 1.5% had been raped.” 4.     The United Nations Human Rights Committee The relevant parts of the Concluding Observations adopted by the Human Rights Committee at its 105 th session, 9-27 July 2012, following consideration of the report presented by Armenia under Article 40 of the International Covenant on Civil and Political Rights read as follows: “6.   The Committee is concerned about the lack of comprehensive legislation on discrimination. It is also concerned about violence against racial and religious minorities, including by civil servants and high-level representatives of the executive power, and about the failure on the part of the police and judicial authorities to investigate, prosecute and punish hate crimes ... The State party should ensure that its definition of discrimination covers all forms of discrimination as set out in the Covenant (race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status). Further, the State party should combat violence and incitement to racial and religious hatred, provide proper protection to minorities, and ensure adequate investigation and prosecution of such cases ... 10.   The Committee is concerned at the discrimination and violence suffered by lesbian, gay, bisexual and transgender (LGBT) persons and rejects all violations of their human rights on the basis of their sexual orientation or gender identity (arts. 3, 6, 7 and 26). The State party should state clearly and officially that it does not tolerate any form of social stigmatization of homosexuality, bisexuality or transexuality, or harassment of, or discrimination or violence against persons because of their sexual orientation or gender identity. The State party should prohibit discrimination based on sexual orientation and gender identity and provide effective protection to LGBT persons.” COMPLAINTS The applicant complains under Article 3 of the Convention that the relevant domestic authorities failed to protect her from harassment, physical abuse, threats and intimidation because of her sexual orientation and to investigate effectively the arson attack and the subsequent incidents by establishing, in particular, the discriminatory motive of the attackers. The applicant further complains under the same provision of the State’s failure to ensure a legal framework providing protection for members of the LGBT community from hate crime. The applicant complains under Article 8 of the Convention that the failure of the State to secure legal mechanisms to prosecute the arson attack as a hate crime, and the authorities’ failure to take appropriate and effective measures to protect her from attacks and abuse perpetrated by private individuals motivated by prejudice towards LGBT persons, was in violation of the State’s positive obligations under this provision. The applicant further complains under Article 13 of the Convention that there had been no effective domestic remedies available to her to seek redress for the violations complained of. The applicant lastly complains under Article 14 of the Convention that she became the victim of abuse, threats and harassment due to her sexual orientation while the authorities failed to have any regard to that fact. QUESTIONS TO THE PARTIES 1.     Did the applicant suffer ill-treatment and interference with her right to respect for her private life, in breach of Articles 3 and 8 of the Convention, as a result of the arson attack of 8 May 2012 and the following events, including the alleged threats, humiliation and harassment?   2.     Regard having had to the positive obligations enshrined in Articles   3 and 8 of the Convention, was the investigation into the arson attack of 8   May 2012 and into the applicant’s subsequent allegations of ill-treatment and harassment adequate for the purposes of these provisions, including for the unravelling of any discriminatory motives of the insulters?   3.     Did the applicant have effective domestic remedies at her disposal for her complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?   4.     Has the applicant suffered discrimination on the ground of her sexual orientation contrary to Article 14 of the Convention, this provision taken in conjunction with Articles 3 and 8 of the Convention?